Last night Deputy David Andrews implied that Deputy O'Keeffe's Bill was copied from the British. I see nothing particularly wrong with that. After all so much of our procedures in this city and in this Chamber have been borrowed en bloc from the British. I see nothing wrong with this legislative larcency provided it is for the good. Deputy Andrews implied that what was good law in England might not necessarily be good law here. However, surely the principles of justice and one's rights to a correct legal decision are the same whether in Ireland or the UK.
Private Members' Business. - Criminal Justice Bill, 1990: Second Stage (Resumed).
Question again proposed: "That the Bill be now read a Second Time."
Are they?
They are. Deputy Andrews also felt that the problem was more the lack of consistency of judgments handed down rather than leniency. I would contend that the problem arises on both fronts. One sees extremely punitive sentences, in some cases jail sentences, handed down for relatively trivial matters. We can all cite occasions of people being committed to jail for relatively minor larceny, non-payment of fines etc. One finds it extremely difficult at times to understand the almost incomprehensively lenient sentences that are handed down on other occasions. We must all agree, however, that this occurs in a minority of cases and unfortunately — or perhaps fortunately — these cases attract a considerable degree of media attention. This media attention is good certainly from the point of view of a lay legislator because it helps to sharpen and focus our consciousness and awareness as legislators of the manner in which the law operates.
I find it extremely difficult to rationalise the handing down of an 18 month suspended sentence with no fine in the case of a defendant who, for example, tricked a woman he met through a matrimonial column out of £2,795 and then proceeded to defraud his own brother-in-law out of over £5,000 of hard earned money which was intended for the treatment of his brother-in-law's sick daughter. Yet this decision was handed down in the Dublin Circuit Court in July 1989. I do not care what the circumstances were. Some penalty should have been imposed in this case.
Again in the Dublin District Court in April 1990 a man who indecently assaulted a woman in a telephone box was ordered to pay a mere £250 compensation. The district justice in the case even asked the defendant how much compensation he thought would be appropriate. Imagine the psychological scar on an 18 year old victim as the bartering takes place across the floor of the court as to the gravity of the crime. Imagine the trauma of having to listen to this trade-off in relation to how much the defendant thought would be appropriate and, at the end of the day, the justice handing down a fine of £250, a mere £5 a week in instalments for a year.
Of course one has to be conscious that there may be mitigating circumstances. Allowing for such factors, however, it is extremely difficult to understand the decision handed down in the Central Criminal Court in Dublin in July 1989 where a man admitted to the manslaughter of his wife because a row had erupted over a new job he had taken as a trainee porter in a hotel. Admittedly the investigation was made easier for the State and for everybody all round by virtue of the fact that the man walked into a Garda station and admitted to the killing. I fail to see, however, how the justice in such a case could justify his decision to impose a suspended jail sentence of five years. I find it extremely difficult to agree with the justice's summation when he said "I do not think that society or the accused or anyone else would benefit from a custodial sentence". It is most extraordinary that a woman is dead, having been strangled, and the guilty person walks away virtually scot-free, because that is what a suspended jail sentence means.
What about the case which came before the Dublin Circuit Criminal Court in May 1989 when a deserted wife and mother of three was raped repeatedly, buggered and sexually assaulted with a kitchen knife in her County Cavan home during a two hour ordeal? The accused man was duly arrested under section 30 of the Offences Against the State Act and taken to the local Garda station. While being interviewed he offered to tell the gardai the truth and agreed to make a written statement, not under any duress. In his statement he admitted to a substantial number of the charges and the circumstances surrounding the charges which were brought before him. The trial lasted three days and received a lot of publicity, and lo and behold, the senior prosecuting counsel who attended the opening day of the trial was unable to attend the case for more than one hour on each of the subsequent days. His nonattendance at the case meant that he was not in a position to cross-examine the accused and give his summing up to the jury. In his absence therefore, the task was taken over by a well respected but certainly less experienced junior counsel who appeared for the State. The accused was acquitted.
Here we have a situation of an acquittal taking place despite a confession which was extracted, not under any duress, which was admissible in evidence and for which there was supporting forensic evidence. Naturally there was wide public concern about the circumstances surrounding the case and the eventual acquittal, and there was wide public speculation that the Director of Public Prosecutions intended questioning the senior counsel prosecuting the case on foot of the report he had received from the Chief State Solicitor's office. We do not know what happened subsequently, whether or not there was discussion or dialogue or whether or not the senior counsel was interviewed by the Director of Public Prosecutions. All I know is that this represents a classic example of what Deputy O'Keeffe is trying to deal with in having this measure brought before the House and this broad principle agreed on Second Stage. That is all we are asking.
Often it is extremely difficult to decide whether a hefty financial penalty or a jail sentence is most appropriate in serious cases. For example, in a case heard at a Dublin District Court in July 1989 an Army sergeant who kidnapped and indecently assaulted and beat a woman was ordered to pay compensation of £5,000. The man pleaded guilty to indecently assaulting her and also imprisoning her during which imprisonment she was kicked in the head, arms, legs and forced to have oral sex. The man at this stage undertook to complete compensation payments. He had already commenced payments of £200 per month. The judge, therefore, agreed that the balance should be paid during the next 12 months and adjourned the case to allow time for the payments to continue. The sad sequel to this case was that the counsel came before the same judge approximately two weeks ago seeking, in fact, to terminate such payments because in the meantime the poor, maligned victim had been murdered. The judge dismissed the case against the Army sergeant under the Probation Act saying that the defendant did not have to make any more payments in view of the woman's death. In my opinion that judgment speaks for itself.
First we had a most heinous and barbaric crime which the defendant admitted to and which the justice dismissed under the Probation Act. Surely the fact that the poor unfortunate victim had been murdered in the meantime should not be an excuse for remitting the balance of the compensation due. Even if the deceased had no next of kin, surely the justice could have ordered that at a minimum the balance of the compensation should have been paid to a charitable organisation in accordance with the principle of making somebody pay for his crime.
The courts are supposed to oversee, administer and dispense justice. Fortunately in most cases they do exactly that, but not always. This is the type of contingency that Deputy O'Keeffe's measure seeks to address. As things stand at present, people guilty of the most heinous, sadistic and brutal crimes walk free and will continue to walk free. Deputy O'Keeffe's proposal, as enshrined in this Bill, will reduce the incidence and likelihood of this happening, but it will not correct things entirely. All that Deputy O'Keeffe is asking is that in extreme cases, and not in trivial cases, the Director of Public Prosecutions would refer the decision of one judge to another in order to determine whether the sentence passed was valid, appropriate and sound, and met the demand of the particular crime. The right of appeal should be fundamental to any decision-making process, so why deny the Director of Public Prosecutions this right?
All of the Opposition parties will agree, indeed, the general public would agree, that it is most unfortunate that the general principle of the Bill, which has received substantial commendation from all and sundry. Members on all sides of the House, with the exception of the Minister, welcomed this Bill loudly. It is unfortunate that the Bill will not receive a Second Reading as a result of the Minister's opposition to it.
With your permission, Sir, I wish to share my time with Deputies Garland and Roche.
Is that agreed? Agreed.
My contribution to the Criminal Justice Bill, 1990 will be brief. As has already been referred to by most speakers, decisions of the Judiciary and the courts have given rise to concern on occasions. We can all recall occasions when we were surprised, annoyed, or even shocked by some of the decisions arrived at in our courts. It is very easy to blame the judge on an occasion, but it is also very easy to forget that the vast majority of cases that come before the courts are dealt with in a fair manner. However, I am sure that Deputy O'Keeffe is genuinely concerned that the unsatisfactory situation that has emerged on occasions should be corrected. Equally, the reasons put forward by the Minister for Justice when advising that this matter should not be pursued at this time are equally valid. What we are being asked to do in this Bill is a major change from existing procedures in the courts. We cannot ignore the situation that exists in Britain, our close neighbour, particularly since they amended their criminal law legislation, and there is clear evidence that the changes made in the legislation have not achieved what they set out to do, that is a more realistic sentencing of offenders for serious crime.
There is no doubt that the cases referred to in the media from time to time overshadow the vast majority of the work that takes place daily in our courts. We must be very grateful to those who interpret and implement the law on our behalf. Nevertheless we cannot ignore the public concern expressed on occasions about decisions in relation to serious offences. People have said that "we have too much law and not enough justice" and we can quote examples, as Deputy Jim Higgins has just done, where elderly people have been beaten and robbed in their homes or on the streets; where children have been abused and assaulted and where women have been raped and attacked. These cases incense the general public. However, I believe we must be very careful not to rush in and make changes in our criminal law until we have conducted a thorough investigation to ensure that the correct changes will be made where appropriate, as our objective is to improve the areas that are causing concern at present.
We also see defendants charged with very serious crimes being let off on technicalities because of the expertise of their lawyers. They succeed in getting the case dismissed and here again people say that there is too much law and not enough justice.
We should not proceed with the Bill at present, but the Law Reform Commission should be asked immediately to report on this area. I believe this would not in any way diminish Deputy O'Keeffe's concern in bringing forward this Bill. It would also ensure that all the expertise and advice available to us would be at our disposal if and when changes are to take place in this area. The Minister has made the point, and I agree with him, that public dissatisfaction at sentences imposed by the courts arise from time to time because the sentences are considered too lenient. While this problem exists, it should be recognised that in the vast majority of cases there is general satisfaction that justice has been done. It is only the occasional case that gives rise to widespread public disquiet and this can often be the result of excessive media coverage.
Media attention, which sometimes sensationalises the issue can serve to undermine confidence in the criminal justice system. People begin to doubt whether the courts are providing the protection from serious crime which they have a right to expect. A key factor often overlooked by commentators is that judges when passing sentences have access to relevant documents from social workers and other professionals which would influence the decision. I am not making the point that people who commit these heinous crimes should be treated any differently but it is important that we bear all the facts in mind when we are discussing changes in the law.
There are other problems relating to the Bill. The Bill places no limit on the time the prosecution has to lodge an appeal against the sentence which has been passed. It would be essential to have a strict time limit imposed on the prosecution for the lodgment of appeals. It would not be acceptable that a person who is being dealt with by the courts should have a threat hanging over him indefinitely.
The Bill as it stands proposes radical changes in the role of the Director of Public Prosecutions. Up to now it has always been the position that the prosecution has not sought to influence in any way court decisions on sentencing. The proposed Bill would involve the prosecution in sentencing in a new way. The prosecution would have to consider the suitability of each sentence and reflect on whether they are satisfied. As well as placing a burden on the criminal prosecution service and stretching their resources, the Bill has the potential to interfere with the impartiality of the Director of Public Prosecutions whose duty it is to ensure that the law is enforced fairly. This Bill could expose the Director of Public Prosecutions to public pressure and lobbying. It is extremely unlikely that he would be allowed to proceed independently. Certain cases are guaranteed to draw extensive media coverage and public interest.
The Bill would also have implications for the independence of the Judiciary who up to now have had complete discretion in dealing with cases that come before them. However, it is inevitable that there will be cases where sentences appear too lenient. In an issue like this it is vital that we work on the advice of expert bodies. The Law Reform Commission are engaged in an examination in this area at present and the Minister has asked them to give priority to a study and a report as quickly as possible. Any major changes in our law of the kind proposed in Deputy O'Keeffe's Bill should be preceded by a serious study of the eventual implications. For this reason I call on the Deputy to await the commission's report before pressing ahead with this Bill.
In making these comments I am not in any way defending some of the decisions that have been made in the interests of the public. Every Member of this House wants to ensure that the public have faith and confidence not alone in the Judiciary but also in this House. For that reason we have a responsibility to ensure that we check every avenue before we make changes in this vital area. We talk about civil rights and about a lot of other matters but this is an area where fundamental changes will take place and it is our duty to protect all citizens, both offenders and those who commit the offence. With these words I would appeal to Deputy O'Keeffe to withdraw his Bill.
This Bill, it is suggested, would provide for a review of sentences, leading possibly either to a reduction or an increase in the sentence passed on the individual concerned. Any decrease would have to be on the basis of their having been an error in law as to the powers of sentencing of the court concerned. Any increase could be based on the opinion of the appeal court that the sentence dealt out was too lenient. There is no mention of the kind of sentencing involved.
This Bill is built to look balanced and fair, but what we have is a device for increasing custodial sentences, among others, whenever popular opinion requires it. This document is a hangman's charter. It is a distasteful example of political cynicism at its lowest. Deputy O'Keeffe is well aware that it does nothing to address the very urgent issue of real justice in this country. By ignoring the issues and running with the herd Deputy O'Keeffe will only add to the crisis of credibility that is daily undermining our communal sense of justice.
What we need is not the power to increase sentences but to fundamentally change our sentencing policy as part of a total review of the ends and means of our criminal justice system. We are still clinging to the coat-tails of Victorian legislation and Victorian concepts of incarceration and punishment. What we need is the political courage to face the failure of the courts and the prison system to provide any serious remedy for crime. We do not need more of the same. This Bill is a sham and will solve nothing. We need to change what we think of as justice.
It is just to send petty criminals to a university of crime, at enormous public expense while neglecting the physical and psychological needs of the victims of crime? Is it just to lock people up, many of whom are little more than teenagers, others whilst awaiting trial and still innocent in the eyes of the law, in conditions that remind us of the worst dictatorships of Eastern Europe, conditions that are regularly driving people to suicide? How can we expect someone to develop the feeling that they belong in society by sending them to prison? If what they learn there about cynicism, brutality and crime, at our expense, is not bad enough, when they come out what hope have people got of living an ordinary life? They are stigmatised forever, because no-one believes you can be reformed by going to prison. People are right; you cannot be reformed by going to prison because prison denies you the essential power to make good, and only by making good do we become good. We do not even seem to believe it is possible anymore.
Is this the best we can do, a system that makes the guilty feel they can never be forgiven, that trains them in crime, that denies them the power to make good, earn their forgiveness and learn to respect themselves, much less others? A system that marks out people as incapable of good, will never reduce crime. A system that is so concerned with stigmatisation and punishment that it ignores the suffering and loss of the victims of crime, and their need to forgive and become whole again does nothing for our sense of justice.
The Green Party, An Comhaontas Glas, rejects the desire to stigmatise and punish in favour of the real need for reparation, rehabilitation and reconciliation. We view the current justice system as overly-concerned with capturing, convicting and punishing the offender, with little time devoted to supporting the victim, repairing the injury and bringing the offender to understand the true unacceptablity of his or her offence. As our highest goal we recognise the principles of reconciliation and forgiveness. We regard it as central to a healthy society that the emotional wounds caused by injustice and criminality be healed and not left to fester. We deplore the living conditions and social climate in our prisons. Whether for those awaiting trial or those eventually convicted, we regard the use of imprisonment as inappropriate in the cases of all but a minority of dangerous and violent criminals.
The overwhelming majority of those currently in prison should be released and required to participate in various forms of rehabilitation and education schemes, as part of a planned development of alternatives to custodial punishment. Future sentencing policy must take account of the unsuitability, ineffectiveness, expense and counter-productive nature of imprisonment in all but a minority of cases.
We regard as particularly unacceptable the current use of imprisonment for young offenders. The incarceration of young, often disturbed individuals, in an environment of violence and intimidation, rife with the abuse of drugs and sexual harassment, with little or no provision for care and rehabilitation, is morally and socially unjustifiable. The demands put upon the officers of the prison service by the over-use of the system are unreasonable and dehumanising. The prison service ought to be raised significantly in public standing. It ought to become part of a greater body of specially trained carers entrusted with the vital educational function of restoring to society, where possible, those who have become habituated to a life of crime.
We support the use of voluntary tagging, and open prisons. We support the imposition of fines, instead of custody, allowing for the likely means of the offender. We support schemes whereby offenders are required to make good the offence, inasmuch as this is feasible. We regard as highly desirable the use of counselling for offenders, combined with whatever measures are taken to make them aware of the gravity of their offence. We believe strongly in the provision of a counselling service for the victims, particularly of violent and personal crime.
We defend the right of all citizens to equal access to law and justice. We believe the legal system at all levels should be radically updated and democratised. In particular, every effort should be made to ensure that the legal institutions do not reflect the ideology of any particular class of society. Access to legal aid and the quality of legal aid obtained should in no way be determined by an individual's ability to pay for such aid.
Apart from anything else, the failure of this Government and, indeed, previous Governments to adopt and implement the provisions of the Whitaker report is deplorble. It is generally recognised that the conditions in our prisons, particularly in Mountjoy, condemns prisoners to subhuman conditions.
The lack of sanitary facilities is particularly demeaning to inmates. The morning ritual of slopping out is an affront to our claim to be a civilized country. We believe that the bulk of crime committed in our society derives from unjust and oppressive economic and social structures, rather than from any inherent human destructiveness, and that the current attitudes and practices of criminal justice tend to reinforce those unjust structures and to increase the rate of crime in our society.
In a supposedly Christian society where we are supposed to show mercy — as Christ did — to those who offend us, it seems that whereas Christ forgives sinners, we seem to be unable to forgive those who offend us.
The current crimes of rape, murder and indecent assault understandably repel the average man and woman. The acts in themselves are so repulsive that there is a natural outcry for justice when these crimes occur. When it appears that justice is not done then understandably the outcry turns to outrage. Like Deputy Higgins and other Deputies, it is not dificult for me to find instances which outrage me and which outrage my constituents and, on the basis of the partial knowledge which we have available to us, which outrage most people. On the surface this Bill appears to have some not inconsiderable attractions. The idea that there should be some system of reviewing sentences is in principle a very good one; courts are human institutions, they are fallible. However, the Bill before us falls far short of what is required. It has been described accurately by the Labour Party spokesman, Deputy Kavanagh, as hastily conceived and not very well drafted. The Bill has many shortcomings. This issue, as the House is aware, has been with the Law Reform Commission for some time. It is a very complex issue. The commission are better equipped than anybody to review and research the issue. The Minister for Justice, Deputy Burke, has put it on the record of the House that he has requested the Attorney General to prompt the Law Reform Commission to speed up their examination of the whole process. I wonder then, why the Bill is introduced at this time. If the Bill was a perfectly drafted and well-crafted instrument I would say "well done" to its sponsor, however, it is far from being well drafted
Deputy Andrews made the point last night that the provisions of this Bill are, in essence, a copy of the English Criminal Law Act of 1988. While the provision of an English Act may suit the conditions of the English courts they do not necessarily suit ours. We apply more rigorous standards here which arise in no small part from the fact that we have a written Constitution; they have none. Moreover, their judicial procedures have proven so shaky in many cases in recent years, particularly where people who are Irish or who have Irish extraction were involved, that I wonder at their provisions commending themselves so fully and so forcibly to Fine Gael. I was amazed at the views of Deputy Jim Higgins which were put on the record on this particular aspect and, specifically, his assertion that high standards of justice apply in the courts of our nearest neighbour; they do not. The recent experience of Irish people who have sought reviews in British courts suggest that their review procedures, whether on sentences or on procedures affecting an accused, are far from a model.
In points of important detail the Bill fails to do justice to this very serious issue. Deputy O'Keeffe has not produced a convincing argument that his proposals do not militate against the principle of double jeopardy. I accept there is a difficulty here if, on the one hand we want to retain the principle that there should be some form of reviewing sentences, particularly where the sentences appear to have gone off the rails. In those circumstances it is difficult to bring the two principles together but at a minimum the sponsor of a Bill such as this should address that issue. It is an important issue, it goes on the heart of justice. By ignoring that issue, either Deputy O'Keeffe is suggesting that it is a matter which is of no consequence to him and, as a lawyer, I cannot believe that is the case or, alternatively, he is suggesting — by his silence on the issue — that he does not wish to deal with it because it is an issue of some difficulty.
Do not worry, I will deal with it.
If Deputy O'Keeffe wishes to respond on that issue I will listen to him.
It is an entirely spurious argument.
The Bill does not deal adequately with the problem of a time limitation on the State appeal. This point was made by Deputy Wallace. How long is the possibility of a further trial to hang over a defendant like the sword of Damocles? There is surely an issue of justice here. If Deputy O'Keeffe had considered his Bill in great detail, or in the detail he would suggest to this House, if the proposals were well thought through, this is an issue that would be addressed. When Deputy Kavanagh suggests that the Bill looks as if it has not been thought through this is surely an area where the truth of those words is proven. More importantly Deputy O'Keeffe does not deal with the issue of protecting a case against prejudice. What happens when a sentence in a particular case does cause an outcry? These are the types of case where there will be a call for a review of a sentence yet, if such a case is to go back to the courts, how will the defence treat the understandable media coverage of the particular event? How is the issue of prejudice to be treated? The Bill is silent on this issue. Perhaps that cannot be put into a Bill; I accept there are drafting problems but, at least, it should have been covered in the contributions on this Bill made by the various spokespersons from Fine Gael as they presented their case to this House. They have failed to do so. That is a very serious matter and yet it is swept under the carpet. Does Deputy O'Keeffe's proposal mean that the media will be hogtied by consideration of an issue being sub judice until the Director of Public Prosecutions, or whoever it may be, decides that the issue is not to go back to the appeal system?
It is not so many months since Fine Gael in this House were vehement about the need to defend the sub judice principle and yet, by definition, if there is a possibility of a review there will inevitably be a period of over-hang in which anything that is said could be regarded as prejudicial to that review. How is this issue to be handled? I accept that in a Bill which is put forward by a spokesperson from an Opposition party it is difficult to deal with that. The fact that that matter is difficult to deal with simply bears out the point that has been made already by Deputy Wallace, and made last night by the Minister, that this is an issue of such complexity that we should be sufficiently patient — not patient for an interminable time — to await the views of the Law Reform Commission on this matter.
The Bill does not tell us, nor does its sponsor, how legal aid is to be handled.
What happens if a defendant exhausts his or her resources defending a case at the first trial? Who is to carry the cost of the second trial? How will this matter be dealt with? This is important and again it goes to the heart of justice. Obviously a person who has defended a case in the first instance in, say, the District Court and then in an appeal to the Circuit Court, will have exhausted his or her physical and financial resources. How is that person's right to be vindicated? While we must be concerned with the rights of the victim, as a just society, a society where standards of justice prevail, we must ensure that justice is done both to the accused and the victim.
Would Deputy O'Keeffe's Bill not in some cases mean a defendant is faced not just simply with double jeopardy but with treble jeopardy when, for example, a case moves from the District Court to the Circuit Court and onwards and is subsequently subject to review? This is important but it is not dealt with in this Bill. These are not mere issues of drafting; they are not simple issues that can be dealt with by amendment. They are of considerable importance.
Several speakers here tonight and previously have made the point that one of the big issues here is not just an appeal against inadequate sentencing but uniform standards. Deputy O'Keeffe made an intriguing contribution when he introduced this matter. He suggested that under existing circumstances judges cannot get together to consider the issue of sentencing policy because of some parsimony on the part of the Minister. Oddly enough, I wrote to the Minister about that issue some time back and I took the trouble to find out the exact position. With due respect and without wishing to cause offence to Deputy O'Keeffe, his assertions in this important matter have fallen short of being either complete or even truthful. Deputy O'Keeffe himself referred to this. Of course, there are meetings organised by the President of the District Court. That is well known, acknowledged and is not in question. What is in question is the position in the higher courts. The judges here also meet regularly.
I intervene to advise Deputy Roche that some two minutes now remain of the time available to him.
As he is finishing, he might speak to the judges concerned and they will tell him the truth, as I have done.
I assume Deputy O'Keeffe will be replying to this debate later and there will be time available to him for that purpose.
If Deputy O'Keeffe is suggesting that the Department of Justice regularly pay for the attendance of judges at meetings abroad, that is a fact. It has not just been brought into existence by this Minister. Also the Minister and the Department have agreed over the years to pay any reasonable costs for meetings, and there is no evidence that there has been an application by judges which has been denied.
In this Bill the power is given to the Director of Public Prosecutions; the Office of the Director of Public Prosecutions is one for which I have considerable respect, and that respect is not always shared on the Fine Gael benches. In the two and a half years since I have been a Member of this House I have regularly heard the rights of the Director of Public Prosecutions in a case questioned, yet when it comes down to it we all know we have created an institution whose decisions we cannot question here. I wonder at the wisdom of giving these powers to the Director of Public Prosecutions. There is at least a serious point to be debated here whether this function should go to the Director of Public Prosecutions or the Attorney General. I do not think the issue is fully thrashed out here. I realise that can be changed by an amendment to the Bill, but when we look at all the issues I have put before the House, the fundamental flaws in this Bill are such that it does not commend itself to the House. I do not wish to take from Deputy O'Keeffe's industry in bringing the matter forward. I compliment him on that. I wish backbenchers on this side could bring Bills forward with the same alacrity, but I suggest that the wiser judgment in this case would be to await the views of the Law Reform Commission and then push for their speedy implementation.
Debate adjourned.